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2015 (10) TMI 120 - AT - Central ExciseDuty demand - Clandestine removal of goods - Whether the appellant is entitled to claim the burning loss of 5.8% or not and whether the appellant succeeds on limitation or not as directed by the remand order of this Tribunal dated 25-7-2005 - Held that:- Appellant has explained that there is a burning loss in the manufacturing process. Therefore, as there is some mistake in recording the statutory records about the burning loss, the Revenue cannot claim that there is a clandestine removal of the goods. - burning loss varies from 3 to 16.7%. This record has not been controverted by the Revenue. If the average is to be taken it will come out about 10% of burning loss. Moreover, this Tribunal also held in the case of Bansal Steel Corporation (1996 (10) TMI 309 - CEGAT, MUMBAI) the burning loss in such activity can occur upto 10%. Admittedly in this case the appellant has claimed the burning loss is 5.8%. Therefore, the appellant has been able to prove the burning loss of 5.8% is appropriate. In these circumstances, as there is no supporting evidences of clandestine removal, the appellant is entitled for burning loss of 5.8% as claimed by the appellant. - appellant has explained that their activities, involves process of heating, hammering and forging certain scaling appears on the top skin of the MS Block and claimed burning loss but the department has not taken any steps to verify whether there is burning loss as claimed by the appellant but merely alleged clandestine removal of the goods. The show cause notice has been issued by invoking extended period of limitation and admitted that these is burning loss. In these circumstances, the allegation of clandestine removal of goods is not sustainable. - Impugned order is set aside - Decided in favour of assessee.
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